Tricom Equities Ltd v Labaj

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TRICOM EQUITIES LTD v LABAJ [2005] FMCA 757

BANKRUPTCY – Creditor’s petition – counter-claim, set-off or cross-demand.

Re Low, Ex parte Argentine Gold Fields Ltd [1891] 1 QB 147

Bradbrook v Farrow Mortgage Services Pty Ltd (unrep. Fed Ct of Aust., No.SN420 of 1993, von Doussa J, 9 February, 1994)

Re Gibbs; Ex parte Triscott (1995) 65 FCR 80
Re Gibbs; Ex parte Triscott [1996] 895 FCA 1
GPW Aussie Exports v Latin (1998) 85 FCR 324

Applicant: TRICOM EQUITIES LTD

Respondent: JOHN LABAJ

File No: BRG 152 of 2005

Delivered on: 3 June, 2005

Delivered at: Brisbane

Hearing Date: 30 May, 2005

Judgment of: Jarrett FM

REPRESENTATION

Counsel for the Applicant: Ms Hindman

Solicitors for the Applicant: McCullough Robertson

The Respondent appeared in person.

ORDERS

1. The date of the act of bankruptcy referred to in paragraph 4 of the creditor’s petition presented on 30 March, 2005 be amended to 15 March, 2005 and service and re-verification of the amended creditor's petition be dispensed with;

2. A sequestration order be made against the estate of the John Labaj;

3. The applicant's costs of and incidental to the petition, including reserved costs if any, be taxed in accordance with the Federal Court Rules and paid from the estate of the respondent debtor in accordance with the Bankruptcy Act1966.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 152 of 2005

TRICOM EQUIRIES LTD

Applicant

And

JOHN LABAJ

Respondent

REASONS FOR JUDGMENT

1. This is the hearing of a creditor's petition presented on 30 March, 2005.  The debtor opposes the making of a sequestration order.

2. At the commencement of the hearing I gave leave to the petitioning creditor to amend the date of bankruptcy from 16 March, 2005 to 15 March, 2005.  I dispense with service and verification of the amended creditor's petition.

Background

1. On 18 September, 2000, a sequestration order was made against the debtor's estate on the petition of a creditor.  The results of a search of the publicly accessible records show that the end date of that bankruptcy was 5 October, 2003.

2. On 20 January, 2004, the debtor commenced proceedings in the District Court of Queensland against the petitioning creditor.  In the proceedings he claimed that when the petitioning creditor gave him advice in respect of certain specified share transactions, it was given negligently.  The negligence, it is alleged, caused to the debtor a loss in the order of $100,000.  The petitioning creditor has defended the proceedings and is prosecuting a counterclaim against the debtor for fees it alleges are due to it for work and services rendered to the debtor. 

3. There have been some interlocutory skirmishes between the petitioning creditor and the debtor in the District Court proceedings.  Firstly, there was an application for default judgement by the debtor against the petitioning creditor.  The application was made after the petitioning creditor had appeared in the proceedings and so, that application was rejected by the Registrar.

4. Secondly, there was an application to strike out the petitioning…